The contract under which the wheat in question was received by the defendant, was clearly one of sale, and not of bailment. Upon the delivery of the wheat by the plaintiffs, it became the property of the defendant, and he thereupon became hable to the plaintiffs to pay for it in flour, according to the terms of the contract; and it was entirely immaterial whether the flour should be made of the wheat delivered by the plaintiffs, or out of other wheat. The destruction of the property after it was' ‘delivered, by the burning of the mill and contents, was the defendant’s loss, and was no defence to this action. (Noy’s Maxims, 91, marg. paging, ch. 93. Bac. Abr. Bail. C. Jones on Bail. 69.) This case cannot be distinguished in principle, in regard to the construction of the contract, from that of Smith v. Clark, (21 Wend. Rep. 83.) That case, it is true, was afterwards taken to the court for the correction of errors and judgment of reversal pronounced ; and from that circumstance an impression has been entertained, to a considerable extent, that the principle decided by the late supreme court in the case as reported in 21 Wend. has been overruled in the court for the Correction of errors. But such was not the case. After the decision as reported, the cause went down to trial at the circuit, and a verdict was found for the defendant. The contract between the plaintiffs, in that case, and Hubbard, was not in writing, and the question what it in fact was, rested entirely upon the parol testimony of witnesses, and principally upon that of Hubbard himself; which was assailed on the ground, as alleged by the plaintiffs, of his having made statements out of court on the subject of the ownership of the flour, inconsistent with his testimony, and upon the ground of alleged discrepancies between his direct and cross-examinations. There was a question also whether the flour had been delivered to the plaintiffs; upon which evidence had been given on both sides. The questions were in effect taken from the jury by the circuit judge, who charged them that the contract was in fact one of sale and not of bailment ; and that there was no evidence which would authorize *524the jury to find that the flour in question had been delivered by Hubbard to the plaintiffs. The plaintiffs excepted to the charge, and moved for a new trial, which was denied, and judgment was perfected for the defendant. Upon that judg- ' ment the writ of error was brought, and the court for the correction of errors reversed the judgment; a majority of the members who voted being of the opinion that the questions of what the contract in fact was, and whether the flour had been delivered by Hubbard to the plaintiffs, should have been submitted to the jury. There never has been any report of the case in the court for the correction of errors; for the reason, as it is supposed, that no principle was settled by it, and that the doctrine of the law of bailment, as held by the supreme court in the case as reported, was not intended to be disturbed. The case, therefore, as reported in 21 Wend. 1 think should be regarded as a sound' exposition of the law. The only case or dictum in the courts of this state which stands opposed to it, is the case of Seymour v. Brown, (19 John. Rep. 44.) The latter is unsupported, so far as I have been able to discover, excepting by the case in "Virginia of Slaughter v. Green, (1 Rand. Rep. 3.) The current of authorities is the other way, and so, in my opinion, is the good sense and reason of the case. (Jones on Bail. 102, 64. 2 Kent's Com. 589, ed. of 1832. Story on Bail. § 283, 438, Buffum v. Merry, 3 Mason's Rep. 478. Hurd v. West, 7 Cowen's Rep. 752, 756, note. Ewing v. French, 1 Blackf. Ind. Rep. 353, note 2.)
The nonsuit was probably granted under a mistaken apprehension of the effect of the decision in the court for the correction of errors, in the case of Smith v. Clark. The evidence of the conversation between the parties at the time the agreement was entered into, was clearly inadmissible. Its only tendency was to change the terms of the written contract, by which the defendant was bound to give a barrel of first rate superfine flour, &c. for every four bushels and 361bs of wheat. The ruling of the circuit judge, on this point, probably made no difference in the result; but the point is distinctly made in *525the bill of exceptions, and may arise on another trial, and is therefore disposed of.
The nonsuit must be set aside, and a new trial granted, with costs to abide the event of the suit.